Employment Law Quiz #3

Gerald v University of Puerto Rico

Is the employer liable for the sexual harassment of Dr. Melissa S. Gerald and liable for retaliation after she brought such claims?

RESULT: NO, summary judgement for university (defendants); Appellate Court: affirmed decision that university was NOT liable

Which laws cover sexual harassment?

brought under antidiscrimination laws (ex. Title VII)

no laws specifically about sexual harassment

plaintiff must show that they were the victim of harassment BECAUSE of their sex

Elements of sexual harassment

1. Show that harasser is gay or lesbian and motivated by sexual desire

2. Victim is harassed in such sex-specific and derogatory terms that harassment is clear

3. Harasser in a mixed-sex workplace treated people differently based on their sex

4. If harasser subjects both men and women to harassment (equal opportunity harasser), one sex must be more likely to be harassed or harassed in a more extreme way

Equal opportunity harassers

Harass both men and women

Courts often rule non-sexual harassment because both sexes were disadvantaged

Can be charged with sexual harassment if they harass sexes differently, in sex-specific ways, or if one sex is more harassed than the other

Quid pro quo harassment

sexual advance or demand for sexual favors that can be “traded for some employment outcome”

this for that

To succeed: plaintiff must show that the action is causally linked to her rejection of or submission to harassment

Hostile Work Environment

ex. insults, epithets, tasteless jokes, profanity, physical conduct, etc

must be sufficiently severe or pervasive to be actionable

(the more severe, the less pervasive it must be)

Affirmative Defenses to Harassment

1. employer exercised reasonable care to prevent and correct harassment

2. plaintiff unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer

employer must have harassment policy and complaint procedure in place

Vicarious liability

TOP Officers: YES (unconditional)

Supervisors / Managers: Yes IF tangible employment action | No IF no action but could be hostile environment

Coworkers / Third-parties: Negligence (plaintiff must show employer knew and failed to take prompt action)

Obligation for accommodating disability?

more extensive but harder for an employee to acquire

Obligation for accommodating religion?

easily acquired but imposes less duty on employer to accommodate

ADA’s definition of disability?

physical or mental impairment that substantially limits one or more major life activity

record of such an impairment

being regarded as having such an impairment

What is a reasonable accommodation? Examples?

• making facilities accessible to and usable by disabled persons

• restructuring jobs

• devising part-time or modified work schedules

• acquiring or modifying equipment or devices

What does the ADA do?

protects a “qualified individual with a disability” from discrimination because of disability

Qualified Individual

Person who is able to perform the essential functions of the job

Inability to perform marginal functions does not make an individual unqualified

Criteria of Essential Functions

position exists to perform this function

few other employees are available to perform this function

function is highly specialized

Job descriptions should…

distinguish essential functions from marginal functions and state all essential job functions

employer should focus on WHAT needs to be accomplished, not HOW tasks are accomplished

interactive process

aims to identify an appropriate and mutually agreeable accommodation

disabled employees should be involved in process early and continuously

What makes an accommodation reasonable?

is effective

does not need to be the employee’s preferred option

does not include provision of items that are primarily for personal use

does not need to be as far reaching as accommodations made previously (if exceeded legal requirements)

does not usually require making exceptions

Confidentiality

medical information should always be kept confidential

Definition of religion

moral and ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views

atheism and agnosticism are forms of religious belief

Sincerity of belief

employers should accept the sincerity of employees’ stated religious beliefs and practices

should focus on whether it is possible to reasonably accommodate them

FMLA

principle federal law governing leave to employees for parental and medical reasons

all governmental agencies & private employers with 50+ employees are covered

provides minimum standard for leave policies

Requirements to Qualify for FMLA

Employer must be government agency or private employer with 50+ employees

Must have been with the employer for 12 months

Must have logged 1,250 hours over past 12 months (~24 hours/week min)

Occurrence of qualifying event

Provision of adequate notification to the employer

FMLA Qualifying Events

1. Birth of child of employee

2. Placement of child with employee by adoption or foster care

3. Need to care for spouse, child, or parent with a serious health condition

4. The inability of an employee to perform the functions of his job due to a serious health condition

5. The need to care for a service member who suffered a serious injury on active duty

6. Any “qualifying exigency”

Serious Health Condition

Inpatient care in hospital or continuing treatment by a health-care provider

Should be supported by certifications from health-care providers

Employees must be given at least 15 days to obtain medical documentation

How to obtain FMLA leave?

employees must notify employers that a qualifying event has occurred

notification can be verbal (do not need to refer to FMLA)

if leave is foreseeable and approximate leave dates are known, employees can be required to provide 30 days notice

otherwise, employees must provide notice asap

What does FMLA provide?

1. up to 12 weeks of leave

2. maintenance of health insurance

3. restoration to same position

there can be no interference with FMLA rights or retaliation against leave takers

USERRA

Uniformed Services Employment and Reemployment Rights Act

employees are entitled to reemployment following up to five years of cumulative absence for military service

if honorable discharge received and timely request made for reemployment, must be reemployed

Exceptions for USERRA

1. employer’s circumstances have changed, rendering reemployment “impossible or unreasonable”

2. necessary training or other accommodations needed to successfully reemploy would impose undue hardship

3. prior employment was for a brief, non-recurrent period and carried no expectation of continued employment

English Only Rules

prohibit or restrict the speaking of languages other than English in the workplace

EEOC: English-only rules applied at all times are presumptively discriminatory

• more narrow policies at certain times are legal, but must show business necessity

Should be no broader than ABSOLUTELY necessary to accomplish legitimate business purposes

enforcement should not be rigid and employees must be clearly notified that rules are in effect

Sexual Orientation Protections

discrimination of transgender individuals can constitute sex stereotyping under Title VII

Bostock v. Clayton County:

• firing an employee due to sexual orientation or gender identity constitutes discrimination “because of sex”

Jury System Improvement Act

protects persons who serve on federal juries from discharge, intimidation or coercion by their employers

(most states have similar laws for state juries)

employers must generally provide employees with time off to serve on juries